Executions and cruelty

April 23, 2008

"When you have to kill a man," said Winston Churchill, "it costs nothing to be polite." When you choose to execute a condemned person, likewise, it costs little or nothing to do so without inflicting gratuitous pain. But reaching agreement on how to achieve that, as the Supreme Court's 7-2 decision upholding Kentucky's execution protocol shows, can be anything but cheap.

The federal government and 36 states insist on maintaining the regrettable practice of capital punishment. The uncertainty over this issue resulted in an effective nationwide moratorium that lasted for months. Now, some states can be expected to resume executions. The court's mixed ruling, however, guarantees more lawsuits and more appeals.

The court splintered on whether and why this particular method of lethal injection complies with the Constitution's ban on "cruel and unusual punishment." For the most part, the justices agreed authorities may not use a procedure that carries a genuine risk of needless suffering. But they couldn't reach a consensus on what is required to meet that standard.

Justices Clarence Thomas and Antonin Scalia denounced the entire effort. In their view, anything is permissible except methods that are actually meant to inflict torture as well as death -- never mind if they inflict torture through indifference or carelessness. But Chief Justice John Roberts, writing for a three-justice plurality, reached the sensible conclusion that the Constitution forbids any method posing "a substantial risk of serious harm" in the form of pointless suffering.

Lawyers for the two killers challenged Kentucky's use of a three-drug protocol -- the first to induce a comalike state, the second to cause paralysis and shut off breathing, and the third to stop the heart. If the first drug is administered incorrectly, they pointed out, the other drugs could produce suffocation and agony. The plurality agreed, but found that the state has adequate safeguards to ensure that doesn't happen. Roberts and Co. also concluded that the alternative method the inmates offered is untried and might be even worse.

Justices Ruth Bader Ginsburg and David Souter, in dissent, noted that other states have adopted precautions to make sure the first drug has taken effect before the others are injected. Among them: speaking the inmate's name, touching eyelashes and using smelling salts to confirm unconsciousness. Maybe those steps aren't so foolproof that they should be required by the court. But it's hard to see why any state should mind incorporating them.

One sure thing is that this ruling will generate more lawsuits and a blizzard of briefs to sort out its full implications. Instead of using money to prevent crime and provide secure prisons, a lot of states will get to waste it defending their brand of capital punishment.